Conflicts of Interest · 12-18% of the exam
8.1.2Direct adversity (Rule 1.7)
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- Rule 1.7 — Direct adversity
Even opposing a current client in an unrelated matter is a structural breach of loyalty.
Why
Loyalty is not measured by how much harm a client happens to suffer. A client who discovers that their own lawyer is on the other side of a case, or attacking them from the podium, has already lost the thing the relationship was for — whether or not the two matters have anything to do with each other.
Plain English
Direct adversity means one current client is literally opposite another: suing Client A on Client B's behalf while representing A separately, or conducting a harmful or embarrassing cross-examination of a current client, even in an unrelated matter. Mere economic adversity is different — two competing businesses in unrelated litigation does not ordinarily create a conflict, and unnamed class members are ordinarily not clients for conflict purposes.
Rule
Rule 1.7 — Direct adversity
Direct adversity exists when:
One current client is literally on the opposing side from another current client, even in an unrelated matter
Examples: suing Client A on Client B's behalf while representing Client A separately; conducting a harmful or embarrassing cross-examination of a current client
Not a conflict:
Mere economic adversity. Representing two competing businesses in unrelated litigation does not ordinarily create a conflict.
Unnamed class members. Unnamed class members are ordinarily not considered clients for conflict-of-interest purposes. A lawyer generally does not need consent from an unnamed class member before representing an adverse party in a separate, unrelated matter.
Example 1
Ex. 1
Elena held an open file at a firm also defending Farid in litigation. Preparation revealed she was a witness defense counsel needed to attack. The firm faced direct adversity: cross-examining a current client opposes her interests even in an unrelated matter. Both clients required disclosure and consent. If cross-examination of Elena was essential, the firm had to withdraw. Ignore how unrelated Elena's own file is — the firm would still be attacking its own client on the stand.
The exam will place two clients in the same market. Economic competition isn't legal adversity; representing clients whose interests are only economically adverse in unrelated matters does not ordinarily create a conflict, and only direct opposition in a matter triggers the direct-adversity prong of Rule 1.7(a)(1).
The exam will suggest class membership makes someone a client. Unnamed class members are generally not clients; their consent isn't required.
Tip
Questions · 2
Q 01ch08-e03
Question 1 of 2 · Rule 1.7(a)(1)
Attorney represents Company in a lease dispute with its landlord and separately represents Corporation in defending an unrelated wrongful-termination suit. Company and Corporation sell competing meal-delivery subscriptions in the same three cities and bid against each other for the same customers every month. Neither of them is a party to the other's case, and nothing Attorney does in either matter touches the other's legal position. Attorney told neither client about the other engagement and obtained consent from neither. A disciplinary complaint asserts that serving two head-to-head rivals is itself a breach of loyalty. Is Attorney subject to discipline?
Keys 1 to 4 choose.